Teamsters Local 101 (Allied Signal)

National Labor Relations Board - Board Decisions

Aug 10, 1992

308 N.L.R.B. 140 (N.L.R.B. 1992)

140
308 NLRB No. 26
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge’s decision is incorrectly dated ‘‘January 31, 1991.’’
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
The General Counsel has also excepted, inter alia, to the judge’s
findings concerning the percentage of unit employees in the welder
and field machinist classifications who were members of the Re-
spondent at the time of the distribution of the settlement. However,
it is not possible to determine what percentage of all field machinists
or welders were union members in April 1990, as the record does
not disclose the total number of employees in these classifications
at that time. In any event, the percentage of employees paid under
the settlement who were union members is the more relevant figure
for the purpose of determining whether the field machinists were in-
cluded for the purpose of benefiting union members. In this regard,
the record shows that 42 percent (35 of 83) of the field machinists
who received money under the settlement were union members as
of April 1990 (employee Hamlet, erroneously listed as a field ma-
chinist on the Respondent’s list of April 1990 members, was actually
a welder). The corresponding figure for the welder classification is
60 percent (6 of 10). We also note that by limiting the settlement
distribution to individuals working on the day the grievance was
filed, the Respondent excluded 19 of the 55 field machinists em-
ployed in April 1990 who were union members from receiving any
money. Under these circumstances, and for the reasons stated by the
judge, we find that the Respondent’s decision to include the field
machinists was not motivated by an unlawful desire to favor its
members.
3 In adopting the judge’s finding that the General Counsel did not
establish that the Respondent was motivated by animus against non-
members when it decided to include field machinists in the settle-
ment, we find it unnecessary to rely on the judge’s statement that
Union Business Agent Lucas’ alleged misrepresentation to Charging
Party Krupp of the reasons for including the field machinists was
‘‘consistent with a personal judgment to avoid lending comfort to
the opposition’’ [i.e., Krupp, whose intent to file an unfair labor
practice charge concerning the Union’s actions was known at the
time]. Rather, we find that any misrepresentation to Krupp by Lucas
that occurred was insufficient to establish that the Respondent’s de-
cision to add 83 other employees to the settlement was motivated
by unlawful considerations, particularly in light of the credited testi-
mony that the Union’s executive board voted to include the field ma-
chinists because they too had lost work as a result of the Employer’s
subcontracting.
1 The name of the Respondent appears as amended at the hearing.
2 Certain errors in the transcript are noted and corrected.
International Brotherhood of Teamsters, Local 101,
AFL–CIO (Allied Signal Corporation) and
David Krupp. Case 5–CB–6583
August 10, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On January 31, 1992, Administrative Law Judge
Joel A. Harmatz issued the attached decision.1 The
General Counsel filed exceptions and a supporting
brief, the Respondent filed a brief in opposition, and
the General Counsel filed a reply brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order.
ORDER
The complaint is dismissed.
Brenda Valentine-Harris, Esq., for the General Counsel.
Jonathan G. Axelrod, Esq. (Beins, Axelrod, Osborne &
Mooney, P.C.), of Washington, D.C., for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This case
was tried in Chesterfield, Virginia, on August 20 and 21, and
November 6, 1991, on an unfair labor practice charge filed
on June 8, 1990, and a complaint issued on August 31, 1990,
which, as amended, alleged that International Brotherhood of
Teamsters, Local 101, AFL–CIO1 (the Respondent or the
Union) violated Section 8(b)(1)(A) of the Act by distributing
proceeds from an arbitration award to a classification of em-
ployees on grounds that were unfair, and/or arbitrary and ca-
pricious, and/or invidious. In its duly filed answer, the Re-
spondent denied that any unfair labor practices were commit-
ted. Following close of the hearing, briefs were filed on be-
half of the General Counsel and the Respondent.
On the entire record,2 including my opportunity directly to
observe the witnesses while testifying and their demeanor,
and after considering the posthearing briefs, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Employer, a Delaware corporation, from its facilities
in Chesterfield, Virginia, has been engaged in the manufac-
ture and nonretail sale and distribution of nylon and polymer
products. In the course of that operation, it annually sells and
ships products, goods, and materials valued in excess of
$50,000 directly to points outside the Commonwealth of Vir-
ginia. The complaint alleges, the answer admits, and I find
that the Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Respondent, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local
101, AFL–CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement
This proceeding arises from a dispute concerning distribu-
tion of proceeds pursuant to a grievance filed by the Charg-
ing Party, David Krupp, a sheet metal worker. The grievance,
one of two filed by Krupp and processed by the Respondent,
141TEAMSTERS LOCAL 101 (ALLIED SIGNAL)
3 As shall be seen the case is complicated by the General Coun-
sel’s introduction of theories after the close of the hearing which dis-
place, rather than support, the cause of action defined in the com-
plaint.
4 The rings have an interior diameter of 14 inches, and an exterior
of 16 inches, weighing 35 to 40 pounds.
5 The sheet metal workers work with light gauged sheet metal,
using sheers and machinery to shape the raw stock into various
forms. The shop machinists work with larger metals forging the ma-
terial by cutting, grinding, and boring pursuant to specifications.
6 G.C. Exh. 6. The protective force of this agreement was broad-
ened by a stipulation in an earlier arbitration, which eliminated man-
agement’s ability to defend subcontracting on the ground that there
was no concomitant ‘‘reduction of the workforce.’’ The settlement
in this regard stated: ‘‘The mere fact that there is no rollback or lay-
off of qualified bargaining unit employees will not in and of itself
justify the Company’s subcontracting of bargaining unit work.’’ G.C.
Exh. 7 at pp. 29, 30. This was regarded by the Union as a codifica-
tion, meaning that art. 29 banned subcontracting that merely pro-
duced a loss of overtime, which apparently was the only adverse im-
pact claimable by virtue of the subcontracting of monomer modifica-
tions.
7 The Employer opposed consolidation with a generic grievance
and resisted arbitration on that ground, requiring the Union to obtain
a court order compelling arbitration. G.C. Exh. 21.
was known as CP–89–88; it contested the Employer’s sub-
contracting of the work of ‘‘drilling monomer rings.’’ After
inability to resolve the claim amicably, it was processed to,
and ultimately sustained, in arbitration. Thereafter, the Em-
ployer and the Respondent attempted to determine the
amounts due under the award. In doing so, at the suggestion
of the Employer, the group considered eligible to share in
backpay with sheet metal workers was expanded to include
shop machinists and welders. These additional classifications
were not mentioned in the underlying grievance or the
award, but also lost work due to the subcontracting.
Because another group, ‘‘field machinists,’’ assertedly lost
work, the Union in agreeing to the Employer’s proposal, in-
sisted effectively on inclusion of this additional classification.
The complaint asserts that the Union breached the duty of
fair representation and hence violated Section 8(b)(1)(A) of
the Act by inducing the Employer to allow ‘‘field machin-
ists’’ to share backpay under that award with the other main-
tenance crafts. The gravamen of the General Counsel’s posi-
tion, as specifically set forth in the complaint, is that the Re-
spondent took this action despite the fact that field machin-
ists ‘‘would not have been involved in the work that was the
subject of the grievance.’’3 The Respondent disputes this,
contending that this classification was involved in the re-
moval and reinstallation of the monomer rings, and since this
work was also contracted out, the field machinists had a
rightful interest in the proceeds from the arbitration settle-
ment, and hence their inclusion was neither unfair, arbitrary,
capricious, nor invidious.
A question also exists whether the Respondent, in any
event, violated Section 8(b)(1)(A) on the basis of proof
showing that it included the field machinists for reasons
other than their involvement in the dismantling and re-
installation on the monomer rings. In this respect, the Gen-
eral Counsel contends that although the evidence might dis-
close that the field machinists also lost work the Union was
unmindful that this was the case, and did not act on this
ground in deeming them eligible.
B. The Subcontracting; the Arbitral Award; and the
Settlement Negotiations
Since 1969, the Respondent has represented production
and maintenance workers at the Employer’s facility in Ches-
terfield, Virginia. The most recent collective-bargaining
agreement has a scheduled expiration date of March 14,
1993.
Monomer rings are among the components used in the
spinning phase of nylon production at this plant. Thus, as
molten nylon is forced through a dye, the monomer ring sur-
rounds the dye and utilizes a vacuum to separate unreacted
nylon fumes, while cooling the yarn.4 This process is de-
signed both to preserve the yarn properties and to prevent
noxious fumes from circulating elsewhere in the production
areas.
Periodically, due to design changes, the monomer rings re-
quire modification or repair. It does not appear that the
modification work had been assigned to the bargaining unit
prior to 1988. However, work of a similar nature had been
performed in-house, utilizing the following classifications:
sheet metal mechanics
welders
shop machinists
Although the embattled field machinists did not and would
not be utilized in connection with the internal modification,
that group traditionally worked in production areas, with du-
ties that included the removal, inspection, disassembly, re-
pair, redelivery, reassembly, and installation of equipment. In
contrast, the shop machinists and sheet metal workers are en-
gaged primarily in the shop area fabricating metals in con-
junction with maintenance and repair.5 Together, these were
4 of 11 classifications in the maintenance department.
In 1988, a number of monomer rings were modified as
part of a large capital improvement project. During that time-
frame, the Employer’s practice of contracting out had be-
come a ‘‘cause celebre’’ in the maintenance department, and
would be contested through a number of grievances. That
which pertained to monomer rings was filed by Charging
Party Krupp strictly on behalf of sheet metal mechanics, and
on article 29 of the subsisting agreement, which provided as
follows:
For the purpose of preserving job opportunities for the
employees covered by this Agreement, the Employer
agrees that work currently performed by, or hereafter
assigned to the bargaining unit shall not be subcon-
tracted if it would result in a reduction of the work-
force, by rollback or layoff in the job which would nor-
mally perform the work being subcontracted.6
At the Union’s choice, the Krupp grievance was consoli-
dated with at least six others, all of which advanced the Re-
spondent’s contention that the Employer was seeking,
through contracting out, to eliminate a segment of the bar-
gaining unit by hiring contractors instead of full-time mainte-
nance workers.7 The matter was heard by Arbitrator Ellen M.
Bussey on March 2, 3, and 22, 1989. On October 19, 1989,
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 G.C. Exh. 7.
9 This breakdown was communicated to the Respondent by tele-
phone.
10 G.C. Exh. 23.
11 Since the modification work was without precedent in the unit,
it is not surprising that the Respondent encountered difficulty while
making its own independent estimates. While waging its own inves-
tigation the various crafts provided conflicting data as to the extent
of that their craft would be required for monomer ring work. Each
seemed to exaggerate their contribution. The problem encountered by
the Union was typified by testimony of Krupp that the sheet metal
workers would be involved for between 6 and 12 hours per ring. The
Company would disagree; its estimates translate into 2 to 3 hours
work for that classification. Krupp agreed that there was plenty room
for disagreement as to just what percentage of the work would have
been done on the modification by each craft.
12 The focus of for these estimates was the modification work, and
at no point did the Employer include the field machinists in its cal-
culations.
13 Human Resources Manager Harvey testified that as early as Jan-
uary or February he had heard rumors that this was a possibility.
the award issued, sustaining, inter alia, grievance CP–89–88,
and specifying that:
Grievance CP–89–88, also filed by sheet metal work-
er David Krupp, concerns the subcontracting of the
drilling of monomer rings, a task which itself has been
undisputed bargaining unit work under normal condi-
tions. The Company claims that in this case, conditions
were not normal. The grievance was filed with respect
to a situation in which the work was particularly intri-
cate and time consuming since complex modifications
had to be made. Complicated tools were required and
the entire sheet metal bargaining unit workforce, work-
ing at total capacity, would not have been able to com-
plete the drilling of the 80 rings on time. It was a situa-
tion in which the Company lacked sufficient skilled
employees to complete the work in the required five
weeks.
The Union’s statement, however, that the Company
had no emergency and actually knew 2 months ahead
of time that the rings needed modification was not re-
butted. No arguments other than the time limits were
valid reasons for subcontracting out the work. The rings
were not part of one specific capital project, but rather
a separate and discrete project, theories no assertion
that the tools, though complex and expensive, were not
available to bargaining unit members, or that this was
a situation which arose unexpectedly. It has been stated
in the instant hearing that there was not enough work
for the bargaining unit sheet metal workers which leads
to the conclusion that they would have extra time with
proper planning. Poor planning, resulting in an emer-
gency, should not cause an adverse situation for the
bargaining unit workers. The grievance is granted. The
bargaining unit sheet metal workers are entitled to over-
time at their customary rate.8
The Krupp grievance, the hearing on it, and ultimately the
arbitrator’s award were addressed specifically to the avail-
ability, inadequate planning, and loss of work by the sheet
metal workers. However, as indicated, when the parties’ at-
tention shifted to the issue of compensation, the scope of
their efforts quickly surpassed these limitations. Thus, appar-
ently from the outset of these postarbitral deliberations, it
would become apparent, at least to the Employer, that while
the grievance was filed on behalf of sheet metal workers,
other classifications, namely, the shop machinists and weld-
ers actually lost about 80 percent of the modification work;
with the sheet metal workers, losing only 20 percent. As
events unfolded, the Employer apparently was more inter-
ested in repairing injustices that inured from monomer sub-
contracting generally, rather than selectively on the narrow
basis dictated by the award. Thus, it wittingly broadened its
liability in order to compensate all crafts that at least would
have worked on the ring modifications.
In estimating its initial proposals, the Employer factored
the percentage of work performed by the sheet metal work-
ers, the shop mechanics, and the welders into the formula-
tion. Two calculations adopting this format are in evidence
and there is no suggestion that others were prepared. For ex-
ample, General Counsel’s Exhibit 15 was an internal calcula-
tion prepared by Maintenance Manager Burns, on request of
Paul Harvey, the Respondent’s superintendent of labor rela-
tions. It includes estimates of the unit hours chargeable to
each classification involved in the modification process. It
assumes 10.5 hours per unit, allocated as follows:
sheet metal mechanics 2 hours
welder 4.5 hours
shop machinists 4 hours9
Later, apparently, in December 1989, the 10.5-hour estimate
per unit, was upscaled to 12 hours, requiring Burns to in-
crease the allotment of hours between classifications.10
There is no concrete evidence that the Respondent ever as-
sented to the estimates in this form,11 or to any formula for
proportional distributional between the crafts. There also is
no evidence that the Employer after December 11, 1989, ever
again embarked on an effort to make such a breakdown.12
Instead, on that date, the Employer informed the Respondent
that it would allow the latter to determine who should be
paid and how much. Thus, the Employer, early on, had de-
ferred to the Union on this issue. Accordingly, from that
point forward, negotiations were confined to the gross
amount due and not its distribution. The dispute centered on
the number of units actually contracted and the number of
man hours consumed in performing the modification on each
unit.
On February 1, 1990, agreement was reached on the num-
ber of hours that it would take to perform the work in-house,
and the number of units contracted out, for a total sum of
$31,308.48.
C. The Inclusion of the Field Machinists
Ultimately, at the Union’s instance, those sharing in the
proceeds were expanded to include the ‘‘field machinists.’’
However, this did not become official until well after the set-
tlement. Thus, it was not until March 22 that the Employer
was alerted, formally, to the possibility that the Respondent
might be inclined to allow field machinists to share in the
backpay.13 At that time, Union President David Whitely re-
quested that the Employer supply certain additional data;
namely, the number of sheet metal workers, field machinists,
and welders employed on the date that Krupp filed the mon-
143TEAMSTERS LOCAL 101 (ALLIED SIGNAL)
14 G.C. Exh. 28. The shop machinists were apparently omitted by
inadvertence from the Union’s initial request. It later sought like data
as to this group. G.C. Exh. 29.
15 G.C. Exh. 23. The General Counsel’s posthearing brief, in ref-
erence to this conversation, states that in the course thereof, ‘‘Har-
vey informed Whitely . . . that the Employer’s settlement offer was
based on an allocation of estimated hours worked by the sheet metal
mechanics, welders and shop machinists.’’ There is no evidence of
any such comment. The record simply reveals that Whitely requested
the estimates communicated earlier, and Harvey obliged by reading
the breakdown over the phone. Harvey did not testify that it re-
mained relevant or that the hours in question formed the basis for
the ultimate proposal. In fact, the final settlement was 14 hours, and
no estimates were ever made by either party as to how the various
crafts would share in this distribution. Whatever the interpretation,
the evidence does not disclose that Whitely was ever admonished by
the Company that its compromise to 14 hours was linked to any
form of proportionate distribution or to any combination of crafts.
16 The distribution formula was on a per capita basis with all eligi-
ble receiving the identical amount irrespective of classification or
share of the work. As shall be seen there is no challenge to the legit-
imacy of the Respondent’s conduct in this regard.
17 G.C. Exhs. 30(a) and (b). At the hearing, the General Counsel
conceded that there is no claim that Lucas wrongfully excluded any
employee entitled to compensation under the Respondent’s payout
formula.
18 G.C. Exh. 31.
19 G.C. Exh. 8. Whitely was authorized to send this letter on April
17, 1990, by action of the Respondent’s executive board. R. Exh.
4.
20 G.C. Exh. 33.
omer ring grievance.14 Harvey responded by providing over-
time listings which reflected those employed in the various
classifications as of March 4, 1988.
On April 10, Whitely telephoned Harvey, requesting the
estimates that the Company had provided orally on Decem-
ber 11, 1989, as to the hours allocated to the various crafts
involved in the monomer work. Harvey again provided this
information by phone.15
The next day, April 11, Whitely verbally advised Harvey
that the field machinists would share in the proceeds and that
the distribution would be made by dividing the total number
of employees in all four classifications into the $31,308,
thus, allowing all to share equally.16 Whitely told Harvey to
work through Doug Lucas in implementing this formula.
On April 17, the Union’s executive board formally en-
dorsed this form of distribution. All four crafts were included
because all ‘‘possibly could been involved in the work.’’ (R.
Exh. 4.)
Having been apprised by Whitely of the Union’s intent,
Harvey sought clarification of those eligible for the payout,
raising the matter in a conversation with Lucas on April 19.
Lucas used the aforementioned March 4, 1988 overtime list-
ings as a guide and after striking certain names, returned the
document in a form permitting the Employer to identify who
should be paid.17
Harvey testified that, with the information furnished by
Lucas, he made the computations and prepared a document
listing the names of all recipients for the Respondent’s ap-
proval.18 Having been alerted by Lucas to the fact that
Krupp had threatened to contest the settlement by filing an
unfair labor practice charge, Harvey gave the list to Lucas
on April 23, requesting written confirmation from the Re-
spondent that this was its position, while providing the Em-
ployer with instruction that payment be made in the amount
specified to those named. By letter of April 24, the Respond-
ent, through Whitely complied, confirming its position as fol-
lows:
In settlement of CP–89–88, the Union, after careful
study, feels the following crafts should be paid for the
work that was sub-contracted.
Sheetmetal
Shop Machinist Welders
Field Machinist
Each man in these crafts that was working on the
day the grievance was filed should be paid the same
amount as per the attached sheet.19
On this basis, Harvey, on April 25, instructed the payroll
department to pay the listed individuals the amount indi-
cated.20 He informed Whitely and Lucas that payment could
be expected on May 9.
D. Concluding Analysis
1. Breach of the duty of fair representation
a. Facial legitimacy of the Respondent’s decision
The duty of fair representation is founded on interpretation
of the Act and, in that sense, is dissimilar to the express stat-
utory proscriptions designed to protect union activity found
in Sections 8(b)(2) and 8(a)(3) of the Act. It is a doctrine
essentially concerned with the protection of individuals and
minorities, its source being the exclusive authority conferred
by the statute upon the bargaining agent—a privilege that
carries a duty to use that authority in a manner fair to all
members of the bargaining unit.
Legal intervention in this area requires sensitivity toward
the traditional functions of bargaining agents and the fact that
negotiating decisions will not always produce equal benefits
to all who are represented. This teaching was underscored by
the Supreme Court in Air Line Pilots Assn. v. O’Neill, 499
U.S. 65, 67 (1991), as follows:
Congress did not intend judicial review of a union’s
performance to permit the court to substitute its own
view of the proper bargain for that reached by the
union. Rather, Congress envisioned the relationship be-
tween the courts and labor unions as similar to that be-
tween the courts and the legislature. Any substantive
evaluation of a union’s performance, therefore, must be
highly deferential, recognizing the wide latitude that ne-
gotiators need for the effective performance of their
bargaining responsibilities. . . . For that reason, the
final product of the bargaining process may constitute
evidence of a breach of the duty only if it can be fairly
characterized as so far outside a ‘‘wide range of reason-
ableness . . . that it is wholly irrational’’ or ‘‘arbi-
trary.’’ [Citations omitted.]
Thus, to assure that rightful prerogatives remain undisturbed,
breach of the duty of fair representation requires credible
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 The formula used in distributing the proceeds, including the de-
gree to which field machinists were allowed to participate is not em-
braced by the specific language of the complaint. At the hearing, the
General Counsel affirmatively stipulated that the so called ‘‘pro
rata’’ formulation used in compensating members of the four crafts
was appropriate and hence is not subject to challenge. Although, in
her posthearing brief, counsel for the General Counsel was not en-
tirely faithful to the narrow limits of the complaint, there was no at-
tempt to alter the letter or spirit of this concession.
22 R. Exh. 4.
23 As indicated, most of the modification work would have been
performed by shop machinists and welders, not the sheet metal me-
chanics. Consistent with that understanding, the proposed and actu-
ally agreed-upon settlement figures always exceeded amounts that
would have been due and owing to sheet metal workers.
proof that demonstrates, with reasonable preciseness, that a
statutory bargaining agent has crossed the line of rationality
and acted to the detriment of a member or members of the
bargaining unit for reasons that are ‘‘arbitrary, discrimina-
tory, or in bad faith.’’ Vaca v. Sipes, 386 U.S. 171, 190
(1967). The fact that the negotiating process leads to a deci-
sion which does not meet everyone’s perception of fairness
is not itself offensive to this standard. Strick Corp., 241
NLRB 210 (1979); Steelworkers Local 2869 (Kaiser Steel),
239 NLRB 982 (1978); Humphrey v. Moore, 375 U.S. 335
(1964). ‘‘[M]ere negligence would not state a claim for
breach of the duty.’’ Steelworkers v. Rawson, 495 U.S. 362,
369 (1990).
In this case the complaint, as written and amended, urges
review of a labor organization’s judgment on a narrow, par-
ticularized ground. That which is deemed ‘‘unfair, arbitrary,
capricious, and invidious,’’ at all times prior to close of the
hearing, was limited to the following:
Respondent included, and refused to reconsider the in-
clusion of, field machinists in the distribution of the
proceeds settling grievance CP 88–89, although field
machinists would not have been involved in the work
that was subject of grievance CP 88–89.21
Central to this assertion is the fact that the field machinists
were allowed to share proceeds in the context of an arbitra-
tion proceeding which was concerned solely with the loss of
monomer work by the sheet metal craft. Thus, Krupp’s griev-
ance mentioned no other craft. The arbitration hearing was
concerned only with the circumstances under which the sheet
metal mechanics might have performed the contracted work.
In a like vein, the rationale set forth in the arbitral award
viewed the loss as limited to that group, mentioned no other
classification, and specifically conferred backpay only on
sheet metal workers.
Apart from the scope of the arbitration, there is little in
the way of objective fact to support the complaint’s theory
of impropriety. Indeed, that assertion is initially deflected by
the undisputed evidence that outsiders, as an incident to the
monomer contracting, were awarded the tasks of removing,
transporting, and reinstalling the monomer rings—work his-
torically performed by the field machinists. Thus, like the
welders, shop machinists, and sheet metal workers, the field
machinists also lost work in consequence of the ‘‘violation
of Article 29 of the collective-bargaining agreement,’’ the
predicate for Krupp’s grievance.
Firstly, the settlement negotiations under scrutiny were not
tailored to the narrow limits of Krupp’s grievance. For un-
derstandable reasons the negotiating parties adopted a broad-
er view of the problem and its solution. The Respondent de-
scribes the inclusion of the field machinists as a logical and
rational consequence of this process. Direct evidence tends to
support that this was the case. Secondly, the standard of eli-
gibility defined in the minutes of the April 17 executive
board meeting reflects an intention to include those groups
that ‘‘possibly could have been involved in the work.’’22 As
indicated, the record demonstrates conclusively that the field
machinists qualified under this standard.
However, the General Counsel attacks this measure of re-
lief as too broad, arguing that it goes beyond the grievance
and the specific subcontract entailed therein, which was lim-
ited to monomer modification. There is no question that it
does. On the theory that the grievance was limited to actual
modification work, the General Counsel would limit rightful
participation in the arbitral proceeds to those engaged in the
actual modification, viewing those engaged in support oper-
ations as ineligible even though they too lost work in con-
sequence of the subcontracting. Far from exposing arbitrary
or invidious behavior, for reasons stated below, to sanction
this view is to impose an artificially grounded limitation
upon the Respondent’s representational discretion.
For obvious reasons, the effort to settle sought to redress
effects of the monomer contracting in a sphere more com-
prehensive than contemplated by the arbitrator. Thus, the
Krupp grievance was only part of that process. It protested
the contracting out of sheet metal work. The arbitrator’s
award was responsive, tailoring reimbursement specifically to
the sheet metal workers for their lost overtime. It did not, in
terms, contemplate a remedy for any other segment of the
bargaining unit. However, the parties were fully mindful that
the Krupp grievance was one of several contesting the Em-
ployer’s right to subcontract in the face of contractual restric-
tions. Some of these grievances were declared arbitrable, oth-
ers were not. Some were sustained by the arbitrator others
were not. The sustention of the Krupp grievance, rested on
the implicit premise that the contracting out of monomer
modifications was unit work, and, since not subject to any
acceptable defense, offended article 29 of the collective-bar-
gaining agreement.
From the outset of the ensuing negotiations, the Respond-
ent and the Employer recognized that the sheet metal craft
held no monopoly over the work in dispute, and at no point
was there an intention to adhere to the award’s directive and
to compensate that group only.23 The inclusion of the shop
machinists and welders makes that clear. Neither was cov-
ered by the grievance, the award, or its precise remedy.
Quite obviously, the Employer, no less than the Union, was
interested in solving a problem—not by creating pockets of
unrequited loss—but by redress to all who lost work in con-
sequence of its conduct, not just Krupp and other sheet metal
workers.
To this extent, the departure from the arbitrated issues was
not challenged by the General Counsel and rightfully not.
Thus, the Krupp grievance was predicated on a violation of
article 29 of the collective-bargaining agreement. The con-
tractual offense was by no means peculiar to sheet metal
workers, and its successful prosecution did not turn on iden-
145TEAMSTERS LOCAL 101 (ALLIED SIGNAL)
24 The General Counsel observes that no member of the bargaining
unit had ever filed a grievance contesting the contracting out of the
dismantling and reinstallation of the rings, nor did union representa-
tives, during the arbitration, assert that field machinists should be in-
cluded in the arbitrator’s consideration of the Krupp grievance. The
same could be said of the shop machinists and welders, whose par-
ticipation in the proceeds is not challenged as arbitrary, discrimina-
tory, or in bad faith. The grievance could have been filed by any
of the classifications affected, not just those that would have been
engaged in a support phase of the job.
25 In describing the Employer’s defense to the Krupp grievance,
Burns testified:
There’s really no issue of which craft. But the main problem
was the fact that the shop machinists, which we had to have on
this job, could not have done the work in time . . . that was
my point in the grievance meeting that we . . . could not handle
the work.
26 Burns did testify before the arbitrator that the shop machinists,
sheet metal workers, and welders would have performed the modi-
fication work had it not been subcontracted. However, Burns was
never questioned and did not testify that others, not involved in ac-
tual modification work, did not lose work. Finally, since the arbitra-
tor made no finding on this issue, Burns’ accounting stands as raw
testimony, rather than an endorsed fact, presently binding on the Re-
spondent.
27 The General Counsel adduced evidence from several witnesses
that Douglas Lucas, a field machinist and, as the Union’s vice presi-
dent and a member of the executive board, questioned them about
the other crafts, but did not mention or question them concerning
work lost by the field machinists. However, it is entirely likely that
his investigation was supplemental to what he already knew about
his own craft and, for that reason, was confined to the solicitation
of information as to contribution by the other crafts. I do not sub-
scribe to any interpretation that this testimony suggests that, from the
Union’s point of view, the negotiations were of limited concern, in-
cluding only the sheet metal workers, the welders, and the shop me-
chanics.
tification of all who lost work,24 or how much. Distinctions
between the crafts affected, the sector of the work they
would have performed, or the identity of the contractor,
lacked relevant bearing to the narrow issue joined by the par-
ties in arbitration.25 These matters went untested and
unexamined in the arbitration; for, the Employer did not
deny that unit employees possessed the skill and ability to
do the work, but defended solely on grounds that sub-
contracting was privileged; first, because the job was capital
in nature rather than maintenance, and second, because the
plant lacked the equipment and manpower to complete the
job in timely fashion.26
In sum, it was the contract violations and their effect—not
the Krupp grievance—that formed the framework for the ne-
gotiations. For that reason, the sheet metal workers were
never considered as the only group to be made whole. The
General Counsel reads too much into the arbitration process.
The award was one thing, the settlement discussions were
another. The award triggered the negotiations, but the latter
broadened the compensatory umbrella to shield all that had
lost work in consequence of the contracting of the monomer
rings.
The General Counsel next contends that the final distribu-
tion legitimately could extend only to those engaged in ac-
tual modification of the monomers. It is true that field ma-
chinists never would have been assigned to this phase of the
job. However, any distinction on this basis would be self-
serving and artificially premised, while failing to grasp the
nature, scope, and goals of the postarbitral discussions. Once
the parties turned their attention to article 29, generally, any
attempt by the Respondent to seek compensation on behalf
of all who lost work was in consonance with, rather than of-
fensive to, its duty to represent the unit fairly. Since field
machinists typically dismantle, remove, and reinstall these
components when shop work is required on them, this
group—just as the sheet metal workers, the shop machinists,
and the welders—were detrimentally affected by the mono-
mer contracting. The adverse impact was shouldered by all
four classifications, a fact hardly neutralized by the contract-
ing of the field machinists’ work to a firm other than that
assigned the modification work.
Yet, as the General Counsel would have it, the global ef-
fect of the subcontracting is to be ignored because the nego-
tiations focused exclusively on the modification work. At
best, from the General Counsel’s point of view, the record
is ambiguous on this point. The contention relies on interpre-
tation which places too much stress on assumptions made by
one party to negotiations, at the expense of the final accom-
modation. Thus, it is clear that during the early stages the
Employer understood that only the sheet metal workers,
welders, and shop machinists were involved. There is no evi-
dence that the Respondent ever subscribed to that ap-
proach.27 Moreover, the negotiations at no point bogged
down in any debate, or exchange for that matter, on the
issues of who did what, and how much. Indeed, if the Em-
ployer felt such matters relevant, after December 11, 1990,
that view never resurfaced as a functional part of the settle-
ment discussions. As of that date, disagreement was confined
to the number of units subcontracted, and how long it would
take to perform each. In the end, there was no protestation
from the Employer that compensation for work lost by the
field machinists was inconsistent with the equitable goals un-
derlying the negotiations.
In a like vein, the General Counsel argues that the under-
lying computations that formed the basis for the Company’s
settlement proposals never included the field machinists, their
losses were never actually assessed, and to include them di-
luted the entitlement of the other three crafts wrongfully.
Giving the General Counsel the benefit of the doubt, it still
would remain unclear that the Union was wedded to any-
thing other than a distribution that included all who lost
work.
In this regard, it is entirely possible that the Union as-
sented to the final lump sum proposal on assumption that it
took account of the interests of all four classifications. From
all indications, the final figure was based on a compromise
agreement as to the number of job units and the number of
hours lost, not the number of crafts that would share in the
proceeds. Since all craftsmen earned the same hourly rate,
the record, on balance, is inconclusive on the relevance of
any proportionate hourly breakdown to that which was in
dispute; i.e., the number of units and the gross hours of work
entailed on each. In the end, there was a rough compromise,
rather than one side’s ability to persuade the other as to the
wisdom of any scientific calculation. Prior to agreement,
only once, and that early in the negotiations, did the Em-
ployer state that its calculations were limited to the propor-
tionate share of work estimated as to the sheet metal work-
ers, welders, and the shop machinists. The Respondent cor-
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 The General Counsel observes, correctly, that there is no credi-
ble evidence that the final settlement figure encompassed work lost
by the field machinists. However, equally absent is any credible evi-
dence that the parties reached this figure subject to mutual under-
standing that the field machinists were to be excluded. This was an
aspect of the circumstantial chain asserted by the General Counsel,
and hence the latter held the burden of proof on this score.
29 The General Counsel also contends that, at times prior to the
actual payment, the Union declined to reconsider its position, al-
though provided information negating any basis for the claim that
field machinists performed modification work. The issue need not be
reached. Obviously, if the field machinists were properly deemed eli-
gible to share in the proceeds on April 17, the Respondent could not
be faulted for failing to reverse that decision.
30 Lucas is since deceased, thus, precluding any direct refutation
of Krupp’s account.
31 The General Counsel cites segments of Maintenance Manager
Burns’ testimony before the arbitrator to further the claim that
Lucas, at the time, knew that field machinists would not have
worked on the modifications and hence that his remarks to Krupp
were false. While the citations briefed appear to be inaccurate, it
does appear that Burns later identified the crafts that he believed
would be involved. He did not mention the field machinists. Never-
theless, I am unmindful of any rule that required Lucas, or any other
union representative, to accept management’s definition of the dis-
puted work. At the time, the issue was wide open as suggested by
Burns himself, through acknowledgment that monomer modification
had not been previously performed in-house. Finally, if Lucas held
to the conviction that field mechanics were involved in modification
work, there was no reason to make that point during the arbitration
hearing.
rectly observes that when the Employer increased its position
to 12 units, it did not provide a breakdown as to how these
hours would be shared and by whom. Indeed, when that fig-
ure was increased to 14 hours, this record allows no basis
for ascertaining, one way or the other, whether the two addi-
tional hours factored in at that juncture did, or did not in-
clude, what the Union ultimately considered as a fair com-
promise of the work performed per unit by all four crafts.28
Accordingly, it is easily assumed on this record that the Re-
spondent at all times held to the view that once the hours
and units were established, distribution could then be made
to all who lost work in consequence of the Employer’s viola-
tion of article 29.
In any event, I am not convinced that the inclusion of the
field machinists could be deemed inherently unreasonable,
even if the Union accepted the $31,308.48 figure without
considering the entitlement of the field machinists. Since the
precise work in question had not previously been performed
in the unit, and since by Krupp’s own admission there was
room for debate as to the contribution of each craft, the
Union, having achieved an upgrade from 12 to 14 hours per
unit in this final settlement, ought not be faulted for adopting
a flexible stance in its effort to compensate all within the
bargaining unit that lost work.
In sum, based on the foregoing, it is concluded that noth-
ing in the grievance/arbitration process or the negotiations
that followed made it unreasonable for the Union to adhere
to a standard in which all who lost work shared in the com-
pensation. In other words, once the Employer elected to ex-
pand the compensable scope of the inquiry to others who lost
work, the economic realities of the situation assumed a level
of primacy, and the loss sustained by field machinists was
no less relevant than that by welders and shop machinists.
b. The motive issue
This commonalty between the four classifications, appar-
ently, does not end the inquiry. For the General Counsel in-
sists that the actual loss by the field machinists was merely
a ‘‘post-charge rationalization,’’ and hence was not relied on
by union functionaries when the decision was made. Instead,
it is argued that the executive board authorized payment for
arbitrary and invidious reasons on the basis of ‘‘nonexistent
work’’ that was not even a part of the project.29 The merits
of this view shall be addressed with strong concern for its
substantiality; for, it concedes that the Union reached a fair
and just result, but presumes a breach of the duty of fair rep-
resentation because it did so on an unacceptable ground.
Central to the General Counsel’s theory is certain
uncorroborated testimony by Krupp concerning one-on-one
conversations with Douglas Lucas after April 17.30 The latter
avers that in these conversations Lucas provided an expla-
nation for the executive board’s action that was false and
would not have merited any sharing in the proceeds by the
field mechanics.
More specifically, Krupp testified that on April 17 he
heard that the executive board had elected to compensate all
four crafts. Being of the view that only those engaged in
modification work would be eligible under his grievance,
while holding the opinion that field mechanics would not
have been used in this work, he could not understand the
basis for this step and immediately sought confirmation from
Lucas. On this and several subsequent occasions, his inquir-
ies to Lucas failed to produce a specific explanation. Instead,
twice, Lucas simply explained that the judgment was made
by the executive board and nothing could be done about it.
Finally, on April 20, Lucas broke down. According to
Krupp, after the conversation became heated, voices were
raised, with Lucas stating:
[T]he reason why the field machinists were on the pay-
out of the money was because these monomer rings had
one inch nozzles sticking out of the inside of the mono-
mer ring and when the outside contractor milled the air
baffle out, he also milled out these one inch nozzles,
thereby leaving the one inch hole where these inserts
would go in. . . . [T]he sheet metal department . . .
wouldn’t have had anything to do with this and [were]
lucky to get any money at all.
Krupp asserts that he was unaware that work of this kind
was involved, so he asked Lucas about the insertion of fab-
ricated tubing into a cup; obviously, to make the point that
this work belonged to sheet metal workers. He claims that
Lucas replied that this work belonged to field machinists.31
Krupp claims that he expressed disagreement. According to
Krupp, Lucas never referred to the removal and reinstallation
of the rings as a consideration prompting the executive
board’s action.
Krupp next decided to investigate whether the monomer
rings did in fact contain external nozzles. As part of this
process, Krupp enlisted the assistance of Shop Steward John
Cornett. Cornett never spoke to Lucas concerning the reasons
for the executive board’s action. However, on April 23, be-
147TEAMSTERS LOCAL 101 (ALLIED SIGNAL)
32 The plant is in a ‘‘right to work’’ jurisdiction. At the time of
the hearing, Krupp was not a union member. He testified that on
several occasions he joined the Union, only to resign later. He
claims to have opted for membership the second time in April 1988
because the Union was pressing grievances on subcontracting, in-
cluding his own. The Respondent’s records, however, show that he
was a member of the Union only once, having been initiated on Feb-
ruary 25, 1988, while ceasing to pay dues on January 31, 1989. (R.
Exh. 8.) The arbitration hearing on his grievance took place on
March 2, 3, and 22, 1989. Although Krupp claims that he was not
on friendly terms with Lucas, the record does not go further in de-
fining the cause or nature of any will manifested between them.
33 Field machinist George Vlkojan confirmed that during this time-
frame Krupp and Cornett approached him concerning the nozzles.
He testified that he never saw nozzles on a monomer ring. He also
testified that he had been approached earlier on the same issue by
Lucas, and that he told Lucas that nozzles were not involved.
34 Krupp testified that he previously had contacted the National
Labor Relations Board after hearing ‘‘rumors’’ as to what the Union
would do with the settlement proceeds. At that point, he was in-
formed that no action could be taken based on rumor. Harvey testi-
fied on April 19, he was informed by Lucas that Krupp intended to
file unfair labor practice charges if the field mechanics were in-
cluded.
35 Krupp testified that in order to get the executive board to
rethink its position based on what Krupp considered ‘‘false informa-
tion,’’ he drafted and gave Cornett a petition, enabling supporters to
declare their belief that the executive board based its decision on
‘‘misleading information.’’ G.C. Exh. 34. There is no evidence that
this document was ever circulated.
36 Whitely testified that he met out of concern that Krupp was
upset. He indicated that he did not go into detail, but attempted to
calm the situation down. He admittedly told Krupp that he was enti-
tled to an explanation, but does not believe that removal and re-
installation of the rings was mentioned.
37 Contrary to the General Counsel, I do not interpret Krupp’s tes-
timony concerning the nature of the settlement negotiations as estab-
lishing that Harvey told him ‘‘that the final settlement was based on
an estimate of hours necessary for each of three crafts—shop ma-
chinists, welders and sheet metal mechanics.’’ Moreover, as indi-
cated, the record does not support an assumption that the crafts in-
volved were a relevant factor, once the Employer, on December 11,
1989, abnegated any interest in who should be paid.
38 Contrary to the General Counsel, I did not understand Patter-
son’s testimony to include a concession that at the time of the meet-
ing ‘‘he did not know for sure whether the actual rings that were
modified had been removed and reinstalled by the field machinists
or by a contractor.’’ Patterson testified that he learned that contrac-
tors were used through testimony by Maintenance Manager Burns.
The entire tenor of his testimony is consistent with his having ac-
quired this information before April 17, and nothing in his account
supports clear implication that this was not the case.
fore meeting with Krupp, Cornett testified that he was alerted
by Lucas that Krupp would attempt to see him, and that the
latter ‘‘was trying to cause some trouble and he would rather
[Cornett] didn’t represent him if [Cornett] could get around
it . . because the Union did not take account of unrepre-
sented scabs.’’32 Cornett replied that he already had an ap-
pointment to see Krupp.
Krupp relates that when he met with Cornett, he informed
him that Lucas said that field machinists were included be-
cause of their work related to the nozzles. Later, Krupp and
Cornett obtained proof that the nozzles were nonexistent.33
Accordingly, that same afternoon, Krupp again contacted
Lucas, pointing out that there were no nozzles, and hence ei-
ther Lucas had been misled or Lucas was misleading Krupp.
He again demanded an explanation, but Lucas replied,
‘‘Well, that’s the Board’s decision and there’s nothing you
can do about it.’’ At this point, Krupp indicated that he
would file unfair labor practice charges.34
In the meantime, Cornett was convinced that steps should
be taken to reverse the executive board’s decision. As he and
Krupp were considering possible options,35 James Patterson,
a member of the executive board, who also was a field ma-
chinist, appeared in the area. Cornett explained the discrep-
ancy to Patterson. The latter conceded that it was possible,
for it was explained at the executive board meeting ‘‘that
there was some nozzles in these monomer rings and they had
been removed and replaced by field machinists.’’ Cornett
then told Patterson that they had information that the nozzles
never existed, whereupon the latter suggested that he talk to
Whitely. Later that day, Patterson told Cornett that he had
spoken to Whitely about Krupp’s concern and that an effort
would be made to set up a meeting with ‘‘some of the Union
officials.’’
Later that week, Cornett spoke to Whitely, who seemed
very cooperative, and stated that he would attempt to set up
such a meeting. The payout was effected on May 9. Prior
thereto, no meeting with union officials took place. However,
on May 10, Whitely met with Krupp and Cornett. According
to Cornett, Whitely used this occasion to apologize and ex-
plain that schedule conflicts precluded their meeting with
other union functionaries. Krupp informed Whitely of Lucas’
explanation for the inclusion of the field machinists. Accord-
ing to Krupp, Whitely responded that he did not think it ap-
propriate to discuss another man’s logic, but offered no jus-
tification for compensating the machinists. Cornett testified
that Whitely explained that he personally was unaware of the
dispute because he was unfamiliar with maintenance work.
However, Whitely did state that Krupp was entitled to an an-
swer to his questions and that he would endeavor to obtain
them and report back. Cornett adds that although Whitely did
not ‘‘quite’’ make the statement that the field machinists re-
moved and installed monomer rings, the latter did advise that
‘‘there was some particular things that field machinists did
to these rings and they did not want to leave anybody out,
so they were added in.’’36
After this, on June 8, Krupp filed unfair labor practice
charges against the Union. He then met with Harvey in the
interest of determining whether charges also should be filed
against the Company. Harvey explained the negotiations
leading to the final agreement.37
The inference sought by the General Counsel as to the
basis for the executive board’s action collides with the only
witnesses called, who held personal knowledge, and hence
could offer a primary accounting of the Respondent’s moti-
vation. All confirm that the field machinists were allowed to
share in the award because of their required involvement in
the removal and reinstallation of the rings. Thus, on this cru-
cial point, Whitley was corroborated by two other surviving
members of the Union’s executive board; namely, David
Whitely, Sandra Epps, the Respondent’s secretary-treasurer,
and James Patterson, the recording secretary.38
The General Counsel urges that this was not the case, and
that the testimony of Whitely, Epps, and Patterson is unwor-
thy of credence. The attack on their accounts is founded:
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
39 I have no doubt that the nozzles played a part in the Respond-
ent’s deliberations. Whitely confirmed as much, testifying that, be-
fore the executive board, there was some discussion about the drill-
ing of holes. He insists, however, that the decision ultimately was
predicated traditional work performed by field machinists.
40 R. Exh. 4.
41 Indeed, Maintenance Supervisor Aubrey Sculthorpe acknowl-
edged that from Lucas’ experience as a field representative and a
shop steward he would have known this to be the case. Moreover,
George Vlkojan, a witness called by the General Counsel to corrobo-
rate Krupp and Corbett, testified that he had either removed or in-
stalled a monomer ring on about 1500 occasions.
42 The following unresponsive exchange with counsel for the Gen-
eral Counsel was indicative of just what in Krupp’s mind was the
appropriate yardstick for participation in the settlement:
MS. HARRIS: Did Mr. Whitely tell you that the field machin-
ists were included because they had installed or removed mono-
mer rings?
MR. KRUPP: No. They had nothing to do with modification of
the monomer rings.
43 The General Counsel also contends that a violation is substan-
tiated on evidence that Lucas inspired the Respondent to include the
field machinists to vindicate his personal animus against nonmem-
bers, or to secure his political position by favoring the field machin-
ists, a far larger group than the other three crafts combined. Both
contentions ascribed a union-based motivation to the Respondent,
and since raising an 8(b)(2) issue are discussed below. In passing,
however, it is noted that I have considered and rejected any view
that the verity of the union officials was contradicted by the fact that
of the four classifications, the field machinists harbored the greatest
number of union members, or by alleged comments suggesting that
Lucas resented nonmembers.
first, on Krupp’s recollection that Lucas provided a different
justification, which was false and could not offer legitimate
support for the Respondent’s action; and, second, by testi-
mony on the part of Krupp and Cornett that they were not
given any other justification by union officials. The General
Counsel would use this indirect testimony, all of which con-
cerned events after the April 17 determination, to dem-
onstrate retroactively that at all times prior to the payout, the
Respondent viewed eligibility as limited to those engaged in
the actual modification, and that when it elected to include
the field machinists, it acted on grounds that were entirely
fictitious, hence confirming an ‘‘arbitrary, irrational deci-
sion.’’
This is one of those situations where all witnesses pre-
sented could have been telling the truth. There is no clear,
direct conflict between the testimony of Whitely, Epps, and
Patterson, on the one hand, and Krupp, Cornett, and Vlkojan,
on the other. Indeed, there is not necessarily a conflict be-
tween testimony by the aforementioned union officials that
they relied primarily on the removal/installation aspect of the
job, and the remarks attributed to Lucas by Krupp.39 Lucas
is not here to testify or explain his actions. Krupp was in no
position to contradict directly the testimony of Whitely,
Epps, and Patterson. The General Counsel seeks to create the
conflict by inference.
However, the testimony of the union officials stands more
firmly against the test of plausibility than the General Coun-
sel’s suspicions. To discredit them is to assume that while
attempting to compensate ‘‘crafts that could have possibly
been involved in the work,’’40 not one of the members of
the executive board raised the unassailable fact that when-
ever monomer rings were serviced, they were always re-
moved and reassembled by the field machinists.
At the same time, even if Krupp were believed, the Gen-
eral Counsel’s interpretation of his testimony is not the only
allowable possibility, and Lucas’ behavior toward Krupp was
not necessarily at odds with perfectly lawful action by the
executive board. It remains possible that Lucas’ comments
were not an accurate reflection of the basis for the executive
board’s action. He might well have been thoroughly disin-
terested in providing a straight answer. He knew from the
outset that Krupp’s inquiries were those of an adversary. In-
deed, the testimony of Paul Harvey, the Employer’s super-
intendent of human resources, suggests that Lucas knew prior
to April 19 that Krupp intended to file unfair labor practice
charges if the field machinists were included. In this light,
his reluctance to offer information is consistent with a per-
sonal judgment to avoid lending comfort to the opposition.
Moreover, if in fact Lucas referred to the nozzles as the sole
justification, it is entirely possible that he intended this as a
ploy to combat Krupp on the latter’s own turf. Thus, unlike
the removal/reinstallation phase of the job, the nozzles sup-
ported an argument, however baseless, that the field machin-
ists had a greater entitlement than the sheet metal workers.
On balance, it strikes as entirely unlikely that Lucas did not
know that he, himself, as a field machinist, on many occa-
sions, had performed the removal and reinstallation work.41
This, together with the fact that an argument was in progress,
heightens the likelihood that Lucas was more interested in
putting down Krupp and his craft, than providing a precise
accounting of the facts on which the executive board acted.
There is also the possibility that Krupp might have mis-
understood, ignored, or forgotten any statement by Lucas that
the field mechanics entitlement was predicated on their in-
volvement in removal/reinstallation operations. Krupp’s mind
set would have robbed such an explanation any meaning and
significance. Thus, his testimony, and other aspects of this
overall proceeding, made it apparent that Krupp, like counsel
for the General Counsel, held firm to the view that only
those engaged in actual modification work were eligible. For
that reason, well before April 20, it was his opinion that field
machinists were not involved in this work and should have
been excluded from the settlement.42 From this perspective,
any comment Lucas might have made regarding the work
historically performed by the field machinists would have
been beside the point, entitled to no weight, and, as such,
would lack priority in the process of storing memorable de-
tails. Moreover, the human condition often will impel a dis-
senting party to exalt one’s own position by recalling and
knocking down the weakest of the adversary’s arguments
when seeking aid and comfort from third parties.
These observations may or may not be true. They merely
serve to demonstrate that Krupp’s account is too slender a
reed to force an inference at odds with direct testimony by
Whitely, Epps, and Patterson—itself bolstered by the equities
stemming from undeniable evidence that all four crafts lost
work in consequence of the Employer’s contracting out of
the monomer modifications.43 Accordingly, the General
Counsel has not proven by a preponderance of the evidence
that the Respondent violated Section 8(b)(1)(A) of the Act by
allowing, and failing to reconsider, participation by field ma-
chinists in the proceeds of negotiated grievance settlement.
149TEAMSTERS LOCAL 101 (ALLIED SIGNAL)
44 Obviously, this assumes that the Union ‘‘caused’’ the employer
to discriminate on membership grounds, and to that extent a classic
violation of Sec. 8(b)(2) is involved. At the hearing, the General
Counsel amended the paragraph of the complaint that defined the
unlawful conduct; yet, there was no attempt to add an 8(b)(2) allega-
tion, or to supplement the motivation specifically set forth in the
amendment by a specific reference to ‘‘membership status.’’ Here,
however, the issue was briefed by the Respondent, thus, making it
difficult to conclude that the matter was not ‘‘fully litigated.’’
45 The General Counsel observes that the field machinists ‘‘had a
higher concentration of union members as compared with the low
percentage of Union membership among the 3 other classifications.’’
This observation is not entirely accurate. Of the 83 field machinists
that shared in the proceeds, 36 or 43 percent were union members
in April 1990. Of the welders, 60 percent were members at that
time.
46 The extent of their participation, on the other hand, would offer
a fertile area for scrutiny. However, the General Counsel conceded
away any challenge to the appropriateness of the distribution formula
which was offered by the Union, and ultimately adopted. This for-
mula enabled 83 field machinists, who had a smaller proportion of
the work lost, to share the proceeds equally with 23 other mainte-
nance department employees. Yet, as matters stand, these facial in-
equities have been removed from consideration. Thus, the large
number of union members that shared in the proceeds was a function
of the number of field machinists on the rolls, and merely incidental
to their rightful compensation for the detriment they sustained.
47 The complaint neither includes an 8(b)(1)(A) allegation based
on this remark, nor names Walton as among those identified as
agents of the Respondent.
c. Other unalleged theories
At page 30 of her posthearing brief, counsel the General
Counsel for the the first time, offers two theoretical grounds
for finding a breach of the duty of fair representation each
of which is materially different from that particularized in the
amended complaint. As pled, the sole factual predicate for
the alleged breach of the duty of fair representation was in-
clusion of the field machinists in the arbitral proceeds. In her
brief, counsel for the General Counsel requested findings that
the ‘‘Respondent . . . has breached its duty of fair represen-
tation to Krupp by advancing a false basis for the inclusion
of field machinists and by failing to meet with Krupp and
address his concerns about the propriety of including field
machinists in the settlement.’’
It was my distinct impression that the facts on which each
rests was known or should have been within the General
Counsel’s knowledge prior to the instant hearing. The failure
to incorporate them in the pleading is understandable only in
terms of the permissive atmosphere in which redress is al-
lowed for unalleged unfair labor practices. In due respect,
this policy—itself alien to the due-process concept of ‘‘prior
notice’’—has produced a deterioration in the reliability of
complaints as the guidepost for litigation, and, if not an in-
ducement to ‘‘sandbagging,’’ it offers a convenient excuse
for the failure to expend time and judgment to assure that
the complaint is consistent with investigatory disclosures,
while identifying the unlawful conduct for which the party
charged is brought to bar.
In any event, if it is possible to describe these issues as
litigated, one can assume that they would have been treated
more elaborately by the Respondent had they been alleged.
Neither was referred to in the latter’s posthearing brief. In-
deed, the General Counsel does not bother to articulate just
how either produced detrimental consequences, nor is author-
ity cited that would warrant a violation in absence thereof.
It is concluded that these matters were not the subject of ad-
versarial concern to an extent that would obviate the need for
formal notice, and both grounds are rejected.
2. The unalleged 8(b)(2) violation
In her posthearing brief, the General Counsel contends that
the Respondent violated the Act ‘‘by arbitrarily and invidi-
ously interjecting a large group of employees not con-
templated by the grievance settlement based upon their union
membership status.’’44 The wrongful, union related motiva-
tion is attributed to Lucas, and hence is a theory that as-
sumes that the executive board was merely an instrumentality
in efforts by Lucas either to vindicate a personal animus
against nonmembers or to secure his personal political posi-
tion by favoring the field machinists, a far larger group than
the other three crafts combined. As indicated, this contention
and facts on which it is premised does not shake my belief
of Whitely, Epps, and Patterson, nor do they deflect my find-
ing that the field machinists, like the sheet metal workers,
welders, and shop mechanics, were included because they
lost work. Nevertheless, it is necessary to comment on the
evidence cited by the General Counsel in this respect.
Concerning any motivation to curry favor among union
members, there was no specific evidence that Lucas, or any
other incumbent union official was concerned with their po-
litical efficacy or held any proclivity to discriminate to fur-
ther his or her standing in the eyes of the membership. In
pursuit of any inference that this was the case, the General
Counsel is relegated to a statistical argument based on the
fact that the field machinists were the larger complement,
with payments made to 83, while 8 shop machinists, 10
welders and 6 sheet metal mechanics were included.45 These
numbers, however, do not translate into either a presumption
of illegality, or a notion that the dominant group is never en-
titled to favorable, nondiscriminatory action. The statistics
alone do not alter my firm conclusion, on this record, that
the eligibility of the field mechanics for compensation was
rooted in rational, nondiscriminatory considerations.46
The General Counsel does point to at least one conversa-
tion suggesting that the Respondent held a general hostility
toward nonmembers. In this latter respect, Clyde Hamlet tes-
tified that after the award was rendered, but before he re-
ceived payment, he had a conversation with Davey Walton.
Hamlet, a union member, related that Walton said that while
he was not speaking for the Union it was his opinion that
nonmembers should not receive a payout from the grievance
settlement. Hamlet testified that Walton presently is a stew-
ard, but he did not know whether Walton held that post at
the time of their conversation. The General Counsel has
failed to establish a reasonable predicate for imputing Wal-
ton’s remark to the Respondent.47
In her final contention, the General Counsel seems to shift
the focus from class discrimination to discrimination against
an individual. It will be recalled that Cornett testified that on
April 23, Lucas requested that Cornett not assist Krupp be-
cause he was a ‘‘scab,’’ who was ‘‘trying to cause some
trouble.’’ The General Counsel argues that because Lucas re-
ferred to Krupp’s membership status, Lucas relied on this
factor ‘‘in the disposition of the grievance.’’ This view, how-
150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
48 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ever, would seem more fitting to an allegation that Krupp in-
dividually was victimized by discrimination, than to an ex-
planation for union conduct addressed to 24 employees (in-
cluding union members) in three entire classifications.
On the entire record in this proceeding, and for the reasons
set forth above, it is inconceivable that Lucas and others on
the executive board were unaware that the Employer’s viola-
tion of the contract impacted with respect to both the modi-
fication work and the essential preliminary/postliminary work
performed by the field machinists. I conclude that the Re-
spondent acted on this ground, that a preponderance of the
evidence does not suggest otherwise, and that even if mem-
bership distinctions did not exist as between the crafts, the
disposition would have been the same. See Wright Line, 251
NLRB 1083 (1980). Accordingly, the complaint shall be dis-
missed in its entirety.
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent did not violate Section 8(b)(1)(A) of
the Act by including field machinists in the proceeds of a
grievance settlement, and by refusing thereafter to reverse
that decision.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended48
ORDER
IT IS ORDERED that the complaint is dismissed in its en-
tirety.